Spinelli v. Costello

Per Curiam,

Plaintiffs sued to recover $2,400 alleged to be due them by defendant as administratrix c. t. a., and as surviving spouse and sole devisee, under the will of Thomas J. Costello, deceased.

Defendant filed an affidavit of defense; but plaintiffs asked for judgment in their favor because of the failure to serve a copy of the affidavit on them, or their counsel, as required by a rule of the court below; judgment was entered as prayed for, and this appeal followed.

The rule in question provides: “A copy of the affidavit of defense shall be served on the plaintiff or his attorney within forty-eight hours after it is filed; otherwise the plaintiff may take a rule for judgment, supported by an affidavit that a copy of the affidavit of defense has not been served as required by this rule.”

While the judgment was entered for a default which ordinarily would be relieved against, yet, since the pleadings fail to suggest any defense on the merits, we cannot say that the court below abused its discretion in the premises.

The judgment is affirmed.